Constitution sets five-year term but does not say when date starts. Experts differ, some saying polling day, others insisting date when Parliament first met as the beginning.
When Nepal goes to polls later this year to elect a new parliament, this will mark the first timely and periodic elections since the restoration of democracy in 1990.
The country last held elections for the House of Representatives on November 26 and December 7 in 2017.
After local elections on May 13, the government, in consultation with the Election Commission, will announce the date(s) for parliamentary elections. There, however, is confusion over the process, especially with regard to when the current House will cease to exist.
Experts and officials offer differing views
Constitutional experts including Bhimarjun Acharya and Bipin Adhikari say the House’s life should be counted from the date the first phase of elections was held five years ago. In that case, the members of parliament complete their five years on November 25.
“Since the people gave their mandate on the date they cast their votes, Parliament’s tenure should be counted from that very day,” said Adhikari, a professor and former dean of Kathmandu University School of Law.
According to Adhikari, Nepal’s Parliament is actually for the first time completing its full five-year term since the first general elections held in 1959.
“The first elected Parliament was dissolved in 18 months, which marked the beginning of the partyless Panchayat era. No parliament after 1990 has functioned full term,” said Adhikari.
But officials at the Parliament Secretariat wonder whether to count the tenure of the House from the polling date (November 26, 2017) or the first meeting of Parliament.
The first meeting of the House was convened on March 5, 2018. By that extension, it completes its five years on March 4, 2023.
No one could offer a concrete answer as to when the new parliament should be in place—by November 25 this year or March 4 next year.
Some even provided three other different dates for the start of the term of the current Parliament. According to them, it could be counted from the day the Election Commission submitted its report on the elected Members of Parliament to the President or the day the lawmakers took oath of office or the day when the prime minister took his oath of office.
“Actually this is a matter of discussion, as no one knows from which date the Parliament’s term should be counted,” said Rojnath Pande, spokesperson for the Parliament Secretariat. “In my opinion, the date when the election body sent the poll results to the President should be taken into consideration.”
Then chief election commissioner Ayodhee Prasad Yadav presented the poll results to the President on February 14, 2018. CPN-UML chair KP Sharma Oli took the oath as prime minister on February 15, 2018. Oli had not even taken the oath as a Member of Parliament when he was sworn in as prime minister, as newly elected lawmakers were administered the oath only on March 5, 2018 at the first meeting of the House.
According to Pande, if the date of first meeting was to be considered, the prime minister had taken the oath of office and secrecy weeks before the first meeting held on March 5 and many of the lawmakers were not present at the oath-taking ceremony.
“It’s more of a political issue,” said Pande. “I think the Cabinet can take a decision on which date the current Parliament’s term should be counted from.”
According to him, political parties will support the government’s decision if that suits their interests, or else they will protest.
Constitutional expert Acharya, however, said such issues are governed by the custom, practice and tradition rather than legal and constitutional provisions.
“There is a practice to take the election date [first phase] as the day from when the Parliament’s term begins,” said Acharya.
The question, however, is whether the current Parliament will remain in place when the country goes to polls to elect a new one. If not, then some wonder whether it needs to be dissolved or whether it is considered automatically dissolved once the elections are announced.
Some constitutional experts argue if the elections are held prior to the House completing five years, it must be dissolved. According to them, the lawmakers must vacate their positions before the elections.
“Elections can be held only when the lawmakers’ positions are vacant,” Purna Man Shakya, a professor at Nepal Law Campus, told the Post. “It is therefore necessary to dissolve the House if the elections are held before the five-year tenure is completed.”
Shakya, who is also a senior advocate, said the British parliament is dissolved if the elections are held before it completes its tenure. In India, which follows the Westminster model, the government dissolves Lok Sabha (lower house) if elections are held before it completes five years.
In India, there is a constitutional provision [Article 83 (2)] that says unless sooner dissolved, the House of the People or Lok Sabha shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as dissolution of the House. Since the first meeting of the 16th Lok Sabha was held on June 4, 2014, when members were administered oath, the term of that Lok Sabha was to expire on June 3, 2019. It, however, was dissolved by the Narendra Modi Cabinet on May 24, 2019 because he was set to take the oath as prime minister again after his party won the elections held from April 11 to May 19. Modi was sworn in as India’s prime minister for a second term on May 30, 2019.
In the United Kingdom, the general election is guided by the Fixed-term Parliaments Act 2011. The Act provides that Parliament is dissolved automatically after five years. Parliament is dissolved automatically 25 working days before a general election. Unless a general election is triggered outside of the five-year period, as per the Fixed-term Parliaments Act, the next date of the general election is at five-year interval on the first Thursday of May.
In Nepal, however, to ascertain the expiry of the current Parliament, there needs to be clarity on when exactly it came into being.
Article 85 on the term of House of Representatives says: “Unless dissolved earlier pursuant to this constitution, the term of the House of Representatives shall be five years.” It, however, doesn’t say which date to take as the beginning of its term.
Om Prakash Aryal, an advocate with expertise on constitutional matters, says the day Parliament held its first meeting should mark the start of its tenure.
“If the lawmakers wish to contest the polls again they should resign after their nomination,” said Aryal. “This House cannot be dissolved and the Deuba-led government has no authority to dissolve it.”
In a democracy, periodic elections make a fundamental contribution to governance, and they are held in such a way that there is no vacuum.
According to election officials, so as to ensure continuity and avoid a vacuum, elections for new Parliament should be held just before its term expires, and once the election date is announced, the existing Parliament, ipso facto, does not exist.
“Only Speaker and deputy Speaker retain their positions once elections are announced, and if they wish to contest, they need to resign,” said an election official.
Chandra Kanta Gyawali, an expert on constitutional affairs, said there is no need for confusion as it is obvious that the House’s term starts on the date it holds its first meeting.
“The first meeting of the current lower house was held on March 5, 2018 when lawmakers took oath, so its term starts from that day,” Gyawali told the Post.
Chief Election Commissioner Dinesh Thapaliya said there is no uniformity in laws, the constitution and the practice to decide the date when this House of Representatives actually started.
“The Election Commission has not formed any opinion on this but in my view, we can consider any of the three dates as the beginning of the term of this Parliament,” said Thapaliya. “It could be either the day when the first phase of election was held (November 26, 2017) or when the commission presented the poll reports to the President (February 14, 2018) or when the first meeting of the Parliament was held and lawmakers took oath (March 5, 2018).”
According to him, the House of Representatives should take a decision since this is a constitutional and legal issue.
“If this matter is resolved now, there won’t be any confusion next time,” said Thapaliya. “If political parties agree, the Cabinet can also resolve it.”
[Binod Ghimire contributed reporting]
